Onus on responsible party

2018-01-31 06:01
Damian Viviers

Damian Viviers

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Question:

My business collects a lot of personal and financial information from our clients. This information is obtained both electronically and in hard copy format. Because of the vo­lume of the information, we store the information electronically and in hard copy with an off-site data sto­rage company. They do not do anything with the data except store it for us. Does Popi apply to this relationship?

Answer:

The Protection of Personal Information Act 4 of 2013 (Popi), although signed into law, has not yet fully come into effect. It is expected to become effective in this year, once the office of the Information Regulator has been fully set up, and will then apply to all responsible parties.

Popi places specific obligations on parties who collect, store, use and destroy personal information to protect the persons to whom such perso­nal information relates from suffering damage or harm.

It also provides them with remedies should there be a breach by such a “responsible party” of the obligations imposed on it by Popi.

In your case, gi­ven the personal information of your clients that you collect, Popi will apply to your business.

The question is if Popi will apply to the use of a third-party company for the sto­rage of personal information.

Popi makes provision for and applies to the distribution of personal information to third parties who pro­cess (collect, store, use or destroy) such information on behalf of a responsible party, such as your business.

These parties, referred to as “operators”, process personal information on behalf of a responsible party in terms of an agreement, without falling under the direct authority of the party.

Whether or not a party can be classified as an operator involves two questions: Do they determine the purpose (why) and means (how) for the pro­cessing of the personal information?

Do they process the personal information on the instruction of a responsible party in accordance with some agreement?

If the first question is answered “no” and the se­cond question “yes”, then the entity will qualify as an operator. However, if the first question is answered “yes”, then the entity will not be considered an operator and the second question becomes irrelevant, as it would then appear that the entity is potentially itself a responsible party.

If the second question is an­swered “no”, then the entity will also not be consi­dered an operator.

In your case, the third party that stores your information, processes (stores) personal information on your behalf. Such sto­rage is presumably based on an agreement with you. This makes the entity an operator processing personal information on your behalf.

Important to note is that the outsourcing of perso­nal information to an operator does not release you as the responsible party from any obligations.

This means that, should the operator contravene Popi in any way in respect of the data it stores for you, you will be held responsible.
Damian Viviers, associate, Pha­tshoane Henney Attorneys

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